The International Criminal Court’s General Prosecutor Luis Moreno-Ocampo on Monday said the court will not accept a Palestinian demand to investigate alleged war crimes by Israel since July 2002 until Palestine is recognize as a state by the U.N. General Assembly.

“In order to proceed we need the General Assembly of the U.N. accepting Palestine as an observer state. As soon as this is done we can proceed,” Ocampo told Al Arabiya’s New York Bureau Chief Talal al-Haj in an exclusive interview.

“There is a problem because In order to proceed I need Palestine recognized as a state because I am not the prosecutor of the world, I am the prosecutor of the countries who accept my jurisdiction. I need a country accepting me and then I investigate the crimes,” the prosecutor said.

Palestine presents its case

In Jan. 22, 2009, the Palestinian Authority (PA) submitted declaration to the International Criminal Court (ICC) under Article 12(3) of the Rome Statute which allows States not party to the Statute to accept the Court’s jurisdiction.

The PA’s declaration stated: ‘The Government of Palestine hereby recognizes the jurisdiction of the Court for the purpose of identifying, prosecuting and judging the authors and accomplices of crimes committed on the territory of Palestine since 1 July 2002. As a consequence, the Government of Palestine will cooperate with the Court without delay or exceptions in conformity with Chapter 9.’

The debate since then has focused largely on whether ICC Prosecutor Ocampo first holds the jurisdiction to accept the Palestinian declaration; and second on whether he has the jurisdiction to conduct an investigation on the alleged crimes in the Palestinian territories.

The ICC’s jurisdiction is restricted to war crimes or crimes against humanity committed by a country or national of country on said territory. A state not party to the Rome Statute can be brought before the ICC only if it chooses to accept the court’s jurisdiction or if the United Nations Security Council refers a situation to it.

Palestine declared its voluntary acceptance of ICC’s jurisdiction in 2009, but whether it should be regarded as a ‘State’ as required by Article 12(3) of Rome Statute has been a matter of debate.

In this specific case, Israel rejects ICC jurisdiction in Gaza because the Jewish state is not a party to the Rome Statute.

According to a document sent by the ICC’s Office of the Prosecutor to the U.N. Commissioner for Human Rights in January 2010, ‘Some argue that Palestinian statehood is irrelevant to this analysis. Instead, they argue that criminal jurisdiction within Palestine rests with the PNA which can therefore transfer such jurisdiction to the ICC through an ad hoc declaration under Article 12(3) of the Statute.’

Others argue that Palestinian Authority does not possess full criminal jurisdiction within Palestinian territories, as it does not exercise authority over Israeli nationals accused of criminal acts, and therefore it cannot transfer it to the court.

On ICC’s role and influence

Since its inception, the ICC has conducted seven investigations, all of them in African states, and not been able to ‘catch’ two of its most famous suspects: Sudanese President Omar Bashir and now the notorious warlord Joseph Kony, both men are listed as fugitives. Of the 28 men the ICC has indicted, only one has been convicted – the Congolese Thomas Dyillo – on March 14 who still awaits sentencing.

In September 2010, the ICC dismissed nearly half of the 8,874 charges of alleged war crimes it received because it said they were outside the court’s jurisdiction.

Many question the court’s ability to successfully prosecute alleged criminals charged with heinous crimes, saying that its record is dismal. However, others argue that the court’s mere mentioning of the crimes being committed in a country creates more awareness on the country’s conflict and may even serve as a way for national investigations to take place to pre-empt ICC involvement.

Supporters of the ICC say that its investigations into crimes against humanity in Darfur and Central African Republic brought the global media’s attention to the conflicts. Analysts believe this has not been lost on the Palestinian leadership that wants the world to see Israel’s crimes against Palestinians.

In the three years since the Palestinians made their initial request to the ICC ─ with Occampo now and again saying that his office is analyzing the request ─ have there been any notable change in Israeli policies towards Palestinians? Since Israeli aggression has shown no signs of abating, it is safe to assume Israel has not been swayed or affected by ICC.

This is compounded by Occampo’s long delayed response to the Palestinian request itself, as according to the Statute, he is not bound to respond within a certain time frame.

Later on Tuesday, Israel welcomed the decision by the ICC to hold off on a preliminary probe.

“Israel takes note of the decision of the prosecutor of the International Criminal Court (ICC) that at this stage the Court has no jurisdiction over complaints filed by the Palestinian Authority (PA),” it said.

“Israel made it clear in the first place that the ICC has no jurisdiction in this matter,” the ministry said in a statement.

“While Israel welcomes the decision on the lack of ICC jurisdiction, it has reservations regarding some of the legal pronouncements and assumptions in the prosecutor's statement,” it said, without elaborating.